approaching to the ilo ui provisions and the recommendations to improve vietnamese ui

FACULTY OF LAW University of Lund APPROACHING TO THE ILO UI PROVISIONS AND THE RECOMMENDATIONS TO IMPROVE VIETNAMESE UI Master thesis Dr. Bengt Lundell Unemployment Insurance 2009 Table of Contents Table of Contents 2 Summary 3 Preface 4 Abbreviation 5 Chapter 1 THE CONCEPT OF THE UNEMPLOYMENT INSURANCE IN ILO PROVISIONS AND VIETNAMESE LAW 6 1.1. Unemployment and UI 6 1.1.1. Unemployment and UI in ILO provisions 6 1.1.2. Unemployment and UI in Vietnamese law 10 Chapter 2. THE CONTENT OF UNEMPLOYMENT INSURANCE IN THE ILO PROVISIONS AND VIETNAMESE LAW 13 2.1. The subjects participate to UI 13 2.1.1. The subjects participate in the UI in the ILO provisions 13 2.1.2. The subjects participate in UI in Vietnamese law 14 2.2. The conditions to get UI benefit 15 2.2.1. The conditions to get UI benefit in the ILO provisions 16 2.2.2. The conditions to get the UI benefit in Vietnamese law 16 2.3. The level of getting the UI benefit 17 2.3.1. The level of getting the UI benefit in ILO provisions 17 2.3.2. The level of getting the UI benefit in Vietnamese law 18 2.4. The duration of getting the UI benefit 18 2.4.1. The duration of getting UI benefit in the ILO provisions: 18 2.4.2. The duration of getting UI benefit in Vietnamese law 19 2.5. The UI fund 19 2.5.1. The UI fund in ILO provisions 19 2.5.2. The UI fund in Vietnamese law 20 Chapter 3. THE RECOMMENDATIONS TO IMPROVE VIETNAMESE UNEMPLOYMENT INSURANCE 21 3.1. The situation of employment and unemployment in Vietnam 21 3.2. The recommendations to perfect UI law in Viet Nam. 23 3.2.1. The subjects participate and get UI benefit 23 3.2.2. The conditions to get the UI benefit 25 3.2.3. The level of getting UI benefit 28 3.2.4. The duration of getting UI benefit 29 3.2.5. The UI fund 30 CONCLUSIONS 33 Supplement A 36 Bibliography 38 2 Summary According to the provision of ILO in UI and unemployment situation in Vietnam, a lot of recommendations are raised to improve Vietnamese UI law. The thesis has three sections: Chapter 1. The concept of UI in ILO provisions and Vietnamese law; Chapter 2. The content of UI in ILO provisions and Vietnamese law; Chapter 3. The recommendations to improve Vietnamese UI Conclusion 3 Preface Demand for labour and supply of labour are of great importance in most countries. In the market economy, global integration and competition have become an indispensable part, which has greatly affected the workers’ jobs. The fact that many workers have lost their jobs has become popular in Vietnam. Therefore, this requires great efforts from workers as well as the State’s appropriate legal policies to support the labor market. Consequently, UI policy plays a very important role in ensuring social security of the nation. Labor market integration and social-economic development are important components for the birth of UI in Vietnam. Vietnamese UI is a regulation of social insurance. It will be excuted in 2009. Approaching to International Labour Organization (ILO) UI provisions and Vietnamese present UI law will be the solid legal premise of UI in Vietnam. Base on those premises, this thesis will present some petitions to perfect the model of a specific, modern and integrated UI of Vietnam. A perfect UI system will guarantee for human rights on labour and aspiration to overcome proverty. And this will contribute to improving the Vietnamese social security system. 4 Abbreviation - ILO: International Labour Organization - Unemployment Insurance: UI 5 Chapter 1 THE CONCEPT OF THE UNEMPLOYMENT INSURANCE IN ILO PROVISIONS AND VIETNAMESE LAW 1.1. Unemployment and UI 1.1.1. Unemployment and UI in ILO provisions The problem of employment and the unemployees protection are legal problems. They are stipulated in the Human Right internationl documents. The employees have the working right. Besides, the employees have the enjoy insurance right when they are unemployed. These right are stipulated in article 23, 25 of the Universal Declaration of Human Rights. “ Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment”1 “ Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control”2 The right to social insurance, the right to work are one of the basic rights of humans. It isn’t only to be stipulated in national laws but also to be acknowledged in international law. The introduction of UI is an effective method to create conditions for the basic rights of human beings, so that the right of citizens can become reality. The ILO set up the ineternational document system to protect the employees right. These conventions acknowledged the relation of employment and the Humans Right’s employment. The employees are treated equal and get the welfares. Article 23 of the Universal Declaration of Human Rights Article 23 of the Universal Declaration of Human Rights 6 According Convention No. 102 (1952) of ILO: "Convention on minimum standards of social security" has been approved by the meeting of the whole organization, including the following policies: health care; illness, unemployment, old age; labour accidents; family assistance payments; pregnancy; loss of workers; death allowance. The countries that ratified this Convention have applied the provisions of the convention on the legal system of their country and established a minimum system. To overcome and solve the situation of unemployment which is currently increasing in the countries in the globalized economy is an urgent issue. Accordingly, depending on the conditions of each country, there will be solutions to solve unemployment such as population policy, restricting migration from rural to urban areas, reducing the age of retirement, strengthening government and investment in the economy, pension dismissal, loss of employment, UI The concept of unemployment as it is defined in ILO regulation3: Unemployment is the phenomenon of workers losing income ”due to inability to obtain suitable employment in the case of a person protected who is capable of, and available for, work. After that, it was added “workers actively looking for work Then to, the concept is completed that “….the employees look for works activity” in the Convention No. 168 (1988) - ILO considers the phenomenon of workers suffering "suspension of earnings" as the criterion to identify the “unemployed” worker. Additionally, the conditions to determine if a person is unemployed is if a worker do not have the ability to find a suitable job but they are capable of working and ready to work to generate income. When the "permanent income" is lost by unemployment, workers must "actively look for work". Thus, according to the provision of ILO, being without permanent income (by losing their job) is the only sign of Article 20 of the ILO convention 7 unemployment. To determine workers who are being unemployed when have the additional conditions are not getting job, although workers have actively sought and desired to get a job. We know that "unemployment" and "work" always is related relation. Both have close relation with the "income". “Unemployment” is the phenomenon of workers without work. Thus, The unemployees are the employees have not income when they lost jobs. The working help the employees to get income. The employees work to get income and look after their family’s life. So, when the employees lost job, their life and family’s life will become bad. The birth of the UI which are seen the effective measure for the uemployees insurance Most developed countries in the world have built a system of UI to ensure life for the unemployed such as the United Kingdom (1911), Italy (1919), to early 1930 with the additional countries such as Sweden, Canada, the United States The countries have recognized the right of the unemployed and quickly made UI a branch of the social insurance system Most countries don’t considered UI just as measures to solve the consequences of unemployment. They considered UI as a policy of an active labor market. And UI is not only a payment but also has the important function to promote the transition the structure of industries, job protection, enhancement of worker career, finding jobs for the unemployed. These activities are associated with the functioning of thelabor market, and the activities to create jobs. According Convention No. 102 of ILO about payments of UI The UI is a part of social insurance to protect workers in case of loss of employment. In addition to payments for the unemployed, UI also has additional measures between the unemployed and the labor market such as: vocational training, re-training, job brokers, career counseling, support expenses of the unemployed to establish business The original legal recognition of UI is a regulation in the system of social insurance. The appearance of this regulation makes insurance rights of human 8 beings better.The right to enjoy social insurance, also one of the basic rights of citizens, are regulated in most of the constitutions of the countries in the world. Look at the social insurance system, and through the pension we can evaluate the advantages of a social mode. UI is paid for the package as "unemployed". It does not stop at the function to pay the income of the unemployed when losing their job. UI, according to ILO, is a part of social insurance to protect workers in case of loss of employment. UI takes care of the rights of workers who have lost their jobs. The issuing and implementation of the UI contributes to effect on social security policies of the country. UI are important for social - political stability and can create sustainable development for each country. The employment and job creation in order to limit unemployment is a category under human rights, an issue which is legal in depth has been expressed in international documents on human rights: "Freedom exit the fear of poverty has been declared as the highest aspiration of all humanity ". And "Everyone has the right to work, freely chosen profession, has been working conditions favorable and legitimate, are protected against unemployment”[1] To overcome and solve the situation of unemployment which is currently increasing in the countries when we access the period of globalization is an unrgent issue. Accordingly, depending on the conditions of each country, there will be solutions to solve unemployment such as population policy, restricting migration from rural to urban areas, reducing the age of retirement, Government strengthening and investment in the economy, pension dismissal, loss of employment, UI According Convention No. 102 (1952) of ILO: "Convention on breaking the rules on minimum social security" has been approved by the meeting of the [1] Academy of Country political Ho Chi Minh, the international documents on human rights, Publisher Political countries Ha Noi. P.62, 67. 9 whole organization, including following policies: health care; illness, unemployment, old age; labour accidents; family assistance payments; pregnancy; loss of workers; death allowance. The countries that ratified this Convention have applied the provisions of the Convention on the legal system of their country and establish a minimum system. The right to social insurance, the right to work are one of the basic rights of human. It isn’t only be stipulated in national laws but also be acknowledged in international law. The introduction of UI is an effective method to create conditions for the basic rights of human beings, the right of citizens to become reality. 1.1.2. Unemployment and UI in Vietnamese law The concept of unemployment in Vietnam The concept of unemployment in Vietnam is: “Unemployment is a phenomenon of no work in the determined period of time (paid work and the self-made), ready to work (a job be paid and the self-made) and looking for work”4. However, because of the purpose of statistics, that concept has only shown "signs" of unemployment, but it has not shown the nature and content of the unemployment. To make it the accurate concept of unemployment , according to Dr. Le Thi Hoai Thu, one must consider the concept of "unemployed" in accordance with "employment" as "all activities generating a source of incume and not prohibited by law "5 In consideration of the relationship with a job to make the definition of unemployment: "unemployment is the state of those without income who have Guide social spending professional in Viet Nam - General Statistics published in 1995 Article 13- The Labor Law of 1994 10 [...]... synchronous and the management of UI fund becomes closely, these rules will be changed 3.2.5 The UI fund The UI fund is formed by the contribution of the participants The UI fund is used to pay benefits for the unemployed The UI helps the unemployed early return to the labor market The UI fund is regulated by 2 provisions: - The provisions on the UI fund contribution; - The provisions on the UI fund management... responsibility to provide this insurance for the unemployed 2.5 The UI fund 2.5.1 The UI fund in ILO provisions The UI fund is formed from the contributions of the parties which participate to UI This fund is used to pay benefits and help the unemployed to return to labour market The UI fund is administrated by two rules: - Provisions on who will contribute to UI; - Provisions on the management of the UI fund... sectors 3.2.2 The conditions to get the UI benefit The UI takes care of the unemployed It does not mean that all unemployed can get the UI benefit when they lose their jobs The employees’ participation in the UI and the contribution to the UI fund are the necessary conditions to get the UI benefit Thus, what is the unemployment concep? Presently, to know what the unemployment is, we must consider the relationship... for the UI benefit, but also help the UI office to control the number of unemployed and pay the UI benefit accurately and effectively 3.2.3 The level of getting UI benefit The UI fund pays and supports for the unemployed to return the labour market The level of UI benefit payment is calculated based on the benefit getting condition, the contribution level, the relation with the benefit and the other... Depending on the socio-economic situation of each country, they will have different regulations on the contributions to UI and how to operate the fund in their country Normally, they stipulate that both the employers and the employees must contribute to the UI fund The provisions about UI contribution must ensure not to have to big effects on the monthly income of the employees and UI fund 2.5.2 The UI fund... and the UI fund - The state quoted budget for unemployed to contribute to the insurance fund; - Being the subject to manage the society, the state promulgates the necessary policies and the laws to support the unemployed and even the employers when the production and the economy have problem UI is a policy for the unemployment problem in the labour market With the employees, this is the center of UI. .. Convention 168 ILO has encouraged the expansion of subjects participating in UI, and apply to the UI for all part-time employees, and the subjects who do nothing, and the part-time employees want to find full-time job UI can to apply to most subjects This reflected the improvement of the social welfare 2.1.2 The subjects participate in UI in Vietnamese law According to the law of Vietnamese UI, the subjects... employees and employers based on the need of the UI It is necessary to have the participation of the state in the formation of UI fund At present, the structure of the three subjects contributing to UI fund is appropriate The responsibility of the state and the employers is to take care the employees The employees also have to regconize the responsibility to ensure safety for themselves - The UI fund... It is difficult to determine the unemployment situation of the employees Therefore, with this in mind, the management of insurance fund is not easy 2.2 The conditions to get UI benefit To get the UI benefit, the employees must participate in the UI But all the unemployed have right to get the UI benefit 15 2.2.1 The conditions to get UI benefit in the ILO provisions UI law is a part of the legal social... management 30 The UI belongs to social insurance The UI is important support for the unemployed There are 3 subjects participating in the UI: the government, the employers and employees The contribution level of the UI fund is calculated base on the UI benefit eligibility level, the UI benefit period of eligibility, and other assistances policies in the labor market In addition, to determine the UI premium . of recommendations are raised to improve Vietnamese UI law. The thesis has three sections: Chapter 1. The concept of UI in ILO provisions and Vietnamese law; Chapter 2. The content of UI in ILO. 168]. The purpose of these provisions restricts the UI payment to the unemployed who do not want to work. 2.2.2. The conditions to get the UI benefit in Vietnamese law The unemployed who get the UI. The subjects participate in UI in Vietnamese law 14 2.2. The conditions to get UI benefit 15 2.2.1. The conditions to get UI benefit in the ILO provisions 16 2.2.2. The conditions to get the